Supreme Court tilt to right had its limits
The 2006-2007 term was dominated by notable conservative rulings.
from the July 2, 2007 edition
Page 3 of 4
Judicial restraint evident
In the campaign-finance case, Federal Election Commission v. Wisconsin Right to Life, Kennedy did not adopt his usual centrist posture. Instead he joined Scalia and Thomas in a call to overturn an important section of the McCain-Feingold law. Roberts and Alito were the ones who took the more moderate road, saying the law was unconstitutional "as applied" to the Wisconsin group, rather than invalidating that section of the law.
The action is an example of a doctrine of judicial restraint often repeated by the chief justice: "If it is not necessary to decide more to dispose of a case, it is necessary not to decide more."
Roberts's moderate posture prompted Scalia to include a few choice barbs aimed at the chief justice in a concurring opinion. Scalia said Roberts's opinion effectively overruled the law without saying so. "This faux judicial restraint is judicial obfuscation," Scalia wrote, deploying a tone usually reserved for dissenting opinions.
In a case involving taxpayer standing to sue the White House for alleged violations of separation of church and state, Scalia again used a concurring opinion to fire off a barrage of arrows aimed at Alito, Roberts, and Kennedy. Scalia and Thomas favored overruling a 1968 precedent, Flast v. Cohen, that first permitted such taxpayer suits. Instead, the three other justices favored an approach that would carve out an exception allowing taxpayers to sue only in response to congressional action, but not in cases solely involving the White House.
For Scalia, the outcome was untenable. The only principled way to resolve the issue, he wrote, was either to allow taxpayers to sue in every instance or to overturn the underlying precedent that awarded them the right to sue in the first place. He accused the three justices of hiding behind a "pretense of minimalism."
"If this court is to decide cases by the rule of law rather than a show of hands, we must surrender to logic and choose sides," Scalia writes. "Either Flast v. Cohen should be applied to all challenges…, or Flast should be repudiated."
Scalia said he understood the impulse to take a minimalist approach. "But laying just claim to be honoring stare decisis [i.e., respect for precedent] requires more than beating Flast to a pulp and then sending it out to the lower courts weakened, denigrated, more incomprehensible than ever, and yet somehow technically alive."
He adds, "We had an opportunity today to erase this blot on our jurisprudence, but instead have simply smudged it."
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